[Senate Hearing 109-541]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-541
 
           ORPHAN WORKS: PROPOSALS FOR A LEGISLATIVE SOLUTION

=======================================================================

                                HEARING

                               before the

                 SUBCOMMITTEE ON INTELLECTUAL PROPERTY

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             APRIL 6, 2006

                               __________

                          Serial No. J-109-68

                               __________

         Printed for the use of the Committee on the Judiciary













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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
           Michael O'Neill, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director
                                 ------                                

                 Subcommittee on Intellectual Property

                     ORRIN G. HATCH, Utah, Chairman
JON KYL, Arizona                     PATRICK J. LEAHY, Vermont
MIKE DeWINE, Ohio                    EDWARD M. KENNEDY, Massachusetts
LINDSEY O. GRAHAM, South Carolina    JOSEPH R. BIDEN, Jr., Delaware
JOHN CORNYN, Texas                   DIANNE FEINSTEIN, California
SAM BROWNBACK, Kansas                HERBERT KOHL, Wisconsin
TOM COBURN, Oklahoma                 RICHARD J. DURBIN, Illinois
                  Bruce Artim, Majority Chief Counsel
                Bruce A. Cohen, Democratic Chief Counsel



















                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
    prepared statement...........................................    83
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     3
    prepared statement...........................................    88

                               WITNESSES

Cross, June, Documentary Journalist, and Assistant Professor of 
  Journalism, Columbia University, New York, New York,...........     8
Holland, Brad, Founding Board Member, Illustrators' Partnership 
  of America, Marshfield, Massachusetts..........................    10
Pallante, Maria, Associate General Counsel and Director of 
  Licensing, The Solomon R. Guggenheim Foundation (Guggenheim 
  Museum), New York, New York....................................    12
Perlman, Victor S., Managing Director and General Counsel, 
  American Society of Media Phographers, Inc., Philadelphia, 
  Pennsylvania...................................................     7
Prelinger, Rick, Board President, Internet Archive, San 
  Francisco, California..........................................    16
Rubin, Thomas C., Associate General Counsel, Microsoft 
  Corporation, Redmond, Washington...............................    14
Sigall, Jule L., Associate Register for Policy and International 
  Affairs, U.S. Copyright Office, Washington, D.C................     5

                       SUBMISSIONS FOR THE RECORD

Advertising Photographers of America, Jeff Sedlik, Chief Advisor 
  on Licensing & Copyright, George Fulton, National President, 
  and Constance Evans, National Executive Director, White Plains, 
  New York, letter and statement.................................    29
American Federation of Television and Radio Artists, Kim Roberts 
  Hedgpeth, National Executive Director, New York, New York, 
  prepared statement.............................................    53
American Society of Composers, Authors and Publishers, New York, 
  New York, prepared statement...................................    55
Cross, June, Documentary Journalist, and Assistant Professor of 
  Journalism, Columbia University, New York, New York, prepared 
  statement......................................................    62
Holland, Brad, Founding Board Member, Illustrators' Partnership 
  of America, Marshfield, Massachusetts, prepared statement......    85
Pallante, Maria, Associate General Counsel and Director of 
  Licensing, The Solomon R. Guggenheim Foundation (Guggenheim 
  Museum), New York, New York, prepared statement................    89
Perlman, Victor S., Managing Director and General Counsel, 
  American Society of Media Phographers, Inc., Philadelphia, 
  Pennsylvania, prepared statement...............................    95
Prelinger, Rick, Board President, Internet Archive, San 
  Francisco, California, prepared statement......................   100
Recording Artists' Coalition, Berliner, Corcoran & Rowe, LLP, Jay 
  Rosenthal, Esq., Washington, D.C., prepared statement..........   103
Rubin, Thomas C., Associate General Counsel, Microsoft 
  Corporation, Redmond, Washington, prepared statement...........   109
Sigall, Jule L., Associate Register for Policy and International 
  Affairs, U.S. Copyright Office, Washington, D.C., prepared 
  statement and attachment.......................................   115
























           ORPHAN WORKS: PROPOSALS FOR A LEGISLATIVE SOLUTION

                              ----------                              


                        THURSDAY, APRIL 6, 2006

                                       U.S. Senate,
                     Subcommittee on Intellectual Property,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:07 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, Chairman of the Subcommittee, presiding.
    Present: Senators Hatch and Leahy.

 OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 
                       THE STATE OF UTAH

    Chairman Hatch. Well, good afternoon. We welcome all of you 
to today's hearing on orphan works. With the panel of experts 
we have before us today, the Subcommittee will be, in my 
opinion, in for a lively discussion on this important topic. It 
is very important, and we are finding that it is becoming more 
and more important as we continue to look into it.
    I would like to begin by providing some context for the 
witness testimony, while reserving as much time as possible for 
a panel discussion. As most people interested in this hearing 
will already know, the term ``orphan works'' generally refers 
to copyrighted works for which the owner is either not known or 
cannot be found. With most forms of assets and physical 
property, an owner is typically easy to identify with 
reasonable efforts. For obvious reasons, identifying the owner 
of a copyrighted work is much more difficult in many cases, 
especially when information about the copyright holder is not 
publicly known or incorporated into the same end product that 
contains the work itself.
    With very rare exceptions, many of which result in police 
intervention, whoever is living in a house or driving a car is 
either the property owner or someone with a personal or 
contractual relationship with the owner. The same is not true 
in the intangible world of copyrights, where the owner of an 
individual book, videotape or photograph generally does not 
hold the copyright to the underlying text or content.
    Historically, copyright information has been included in 
the end product. For example, the copyright holder will 
frequently be listed in the movie credits, including album 
liner notes, or printed on the back of a photograph. However, 
with the advent of digital and Internet distribution models for 
copyrighted works, it has become more difficult to attach such 
copyright information to the copyrighted work itself.
    These problems have been exacerbated by two sets of changes 
in copyright law. First, because of the extension of the 
copyright terms, many works are protected by copyright for 
decades after the author has died and long after they cease to 
have any significant economic value. The second set of changes 
occurred as a result of our accession to the Berne Convention, 
which prohibits conditioning copyright protection on 
formalities such as registration or renewal. Because original 
works receive automatic copyright protection without the need 
for the owner to register the work, there is no centralized 
registry that can be used to identify copyright holders.
    As a result of these difficulties, it appears that a 
significant number of works are protected by copyright without 
any reasonable or effective way for potential users to identify 
their owners. As a result, the public loses ongoing access to 
and use of these works, without any corresponding benefit to 
the author. As the Copyright Office concluded in its recent 
report on the subject, such an outcome is not in the public 
interest, particularly where the copyright owner is not 
locatable because he no longer exists or otherwise does not 
care to restrain the use of his work.
    With respect to virtually every other type of property that 
receives legal recognition, there are either equitable 
doctrines in the law or statutory provisions addressing this 
type of problem. In other areas of the law, the rights of an 
owner are limited by things like adverse possession, salvage 
rights, found treasure doctrines and abandonment theories.
    Many believe that a similar concept should be applied to 
copyright law and the Copyright Office has recommended 
something along these lines. Under their proposal, a user who 
performed a good-faith, reasonably diligent search for the 
owner prior to using a copyrighted work would in most instances 
have his or her damages liability limited to a reasonable 
royalty rate. In certain instances, equitable relief would also 
be limited.
    I tend to believe that this type of approach would be 
beneficial to copyright law and would allow artists, consumers 
and academics the use of many works that have historical, 
cultural and economic value. However, I suspect that we have a 
range of opinions on the Copyright Office proposal, so I look 
forward to hearing the opinions of our panel of expert 
witnesses.
    But, first, let us hear from the ranking Democrat member of 
the Subcommittee and the ranking Democrat member of the full 
Committee, Senator Leahy, whom I enjoy working with on these 
issues very, very much because of his own ability to cut 
through the maze and to come up with solutions that really have 
worked in the intellectual property fields for really the 
decades that we have been together.
    [The prepared statement of Senator Hatch appears as a 
submission for the record.]
    Senator Leahy, we will turn to you.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Well, thank you, Mr. Chairman. As you know, 
you and I have been able to put together some significant 
bipartisan legislation in this area. As we find more and more 
in the Senate, it is only the bipartisan legislation that 
actually has a real chance of passing and getting signed into 
law.
    We are blessed to live in a country with such deep creative 
roots. We have the best music industry in the world, the 
greatest film industry in the world, the largest publishing 
industry in the world, superb photographs, and we have millions 
of creative works that are born from that. But there are many 
works where no copyright owner can be found. These are the 
``orphans,'' as Senator Hatch said. You can't use them for 
reproduction, restoration, or adaptation because you can't find 
the lawful copyright owners.
    Under current laws, if you can't find the photographer who 
took your great grandparents' wedding picture over 75 years 
ago, no matter how hard you search, you can't have that picture 
restored legally. In an example recently mentioned in the Wall 
Street Journal, a Civil War historian wrote an article which 
used several letters and diaries from soldiers. Although a 
magazine initially agreed to publish the article, the publisher 
pulled the piece because he feared litigation arising from the 
use of those works. They were 150 years old.
    Orphan works problems have a particularly unfortunate 
effect on older films. Some of them are disintegrating and they 
will disappear because we can't find who the copyright owners 
are. I know the particularly vexing issues that confront the 
professional photographer or illustrator with a great number of 
works and the difficulty ensuring that others do not claim them 
for their own.
    I have seen some of my own photographs show up suddenly in 
a magazine, not the one I had originally sold it to or given it 
to. I know what that means. I know the thrill when I see my 
son-in-law's photographs published, but I know he would not be 
as thrilled if the credit was not given either to him or to his 
organization.
    This situation impacts copyright owners and potential 
copyright users in every industry, from an individual 
scrapbooker or illustrator to the largest corporation. Senator 
Hatch and I asked the Copyright Office to study orphan works 
and issue a report on the situation, as well as a suggestion 
for possible legislation. The report came out in January. It is 
clear that they spent a considerable amount of time, a 
tremendous amount of time on that, and I thank them for that. 
The multitude of comments, both those made to the Copyright 
Office and those made in the subsequent roundtable discussions, 
show how committed all the interested parties are to find a 
sensible and equitable solution to this conundrum of orphan 
works.
    So I am glad we are having this opportunity to have this 
hearing. I think it opens up a dialog with representatives of 
all points of view on this issue. And it is not a uniform point 
of view. I am well aware of that, but it is an issue of vital 
importance. I think we can all agree on that.
    I have no intention of crafting legislation that harms the 
creators who hold copyrights and who bring so much value to our 
culture and economy. But I would like to see the chance for 
social and cultural enrichment by enabling use of these orphan 
works by the public. I am afraid that at a time when we are 
growing so fast as a country and when there is so much going on 
that we miss some things that could really speak to what we are 
as a country, or speak to things that will actually enrich our 
lives.
    So we have a lot of work to do, Mr. Chairman, but if past 
is prologue, you and I have been able to work through these 
things before and I think we will here.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Hatch. Well, thank you, Senator Leahy. I think we 
will.
    Let me just say we have a great panel here today to discuss 
this issue, and before I introduce them I should note that we 
have departed from the more traditional hearing structure by 
not having separate panels for the Government and industry 
witnesses. We have done this in the hopes that it will allow 
for a more lively debate among the witnesses. In particular, 
because most of the discussion today will center around the 
Copyright Office proposal, I thought it would be appropriate to 
have a representative of that Office on the same panel so he 
could respond to both positive and negative comment on the 
proposal. With that explanation, let me introduce the witnesses 
here today.
    First, we are going to hear from Jule Sigall, the Associate 
Register for Policy and International Affairs at the Copyright 
Office. I would like to thank Jule for all of the work the 
Office put into the orphan works report that Senator Leahy and 
I have requested.
    Next, we will hear from Victor Perlman, Managing Director 
and General Counsel of the American Society of Media 
Photographers. We are grateful to have you here, Mr. Perlman.
    Then we will have, after Mr. Perlman, Ms. June Cross, who 
is a documentary filmmaker and a professor at Columbia 
University. We are grateful to have you with us.
    Next, we have Brad Holland, a founding board member of the 
Illustrators' Partnership of America. We are grateful to have 
all of you here. I will just quit repeating that each time, but 
we are grateful to have you here, Mr. Holland.
    Senator Leahy. So if we don't say it, we are still 
grateful.
    Chairman Hatch. Yes, we are still grateful. Repetition 
doesn't always bring conviction here.
    We will hear, after Mr. Holland, from Ms. Maria Pallante, 
Associate General Counsel and Director of Licensing for the 
Solomon R. Guggenheim Foundation.
    After that, we will receive testimony from Thomas C. 
Rubin--good to see you again, Mr. Rubin--Associate General 
Counsel for Microsoft Corporation. He has got a tiger by the 
tail there in many respects in this area.
    Last but not least, we will hear from Rick Prelinger, Board 
President of the Internet Archive.
    I look forward, and I know Senator Leahy does, to hearing 
your testimony, and we want to thank each of you for taking the 
time out of your schedules to be with us today. This is an 
important hearing and we are really interested in what you have 
to say.
    So we will start with you, Mr. Sigall.

STATEMENT OF JULE L. SIGALL, ASSOCIATE REGISTER FOR POLICY AND 
 INTERNATIONAL AFFAIRS, U.S. COPYRIGHT OFFICE, WASHINGTON, D.C.

    Mr. Sigall. Thank you, Mr. Chairman.
    Chairman Hatch, Senator Leahy and members of the 
Subcommittee, I am pleased to appear today on behalf of the 
Copyright Office to testify about solving the orphan works 
problem. We would like to thank Chairman Hatch and Senator 
Leahy for their leadership on this issue and for commissioning 
the report on orphan works which we published in January. As 
always, we were very pleased to assist the Subcommittee in 
resolving important copyright issues.
    As you summarized, Mr. Chairman, the term ``orphan works'' 
describes the situation where someone would like to use a 
copyright work, but cannot identify and locate the copyright 
owner. Even where the user makes a diligent effort to find the 
owner, if the owner is not found, the user faces a dilemma. She 
cannot determine whether the owner would permit the use.
    Where the proposed use is infringing, the user cannot 
reduce the risk of copyright liability because there is always 
the possibility that a copyright owner could bring an 
infringement action after that use has begun. In this 
situation, a productive and beneficial use of the work may be 
forestalled, not because the owner has asserted exclusive 
rights or because the user and owner cannot agree on the terms 
of a license, but merely because the user cannot locate that 
owner.
    For many users, the risk of infringement liability, even 
though remote, is enough to prompt them not to make use of the 
work. This outcome is not in the public interest, especially 
where the owner no longer exists or otherwise does not care to 
restrain the use of his work.
    Based on our study of this issue, we concluded the 
following. The orphan works problem is real, but it is elusive 
to quantify and describe comprehensively. Some orphan works 
situations may be addressed by existing law, but many are not, 
and legislation is necessary to provide a meaningful solution 
to the orphan works problem as we know it today. The report 
recommends with specific legislative language an amendment to 
the Copyright Act's remedies section.
    Our proposal is motivated by two primary goals. First, any 
system to deal with orphan works should seek to make it more 
likely that a user finds the relevant owner in the first 
instance and negotiates a voluntary agreement over the use of 
the work. Second, where the user cannot identify and locate the 
owner after a reasonably diligent search, then the system 
should permit that user to make use of the work, subject to the 
provisions that resolve issues that arise if the owner surfaces 
after the use has commenced.
    Our proposed amendment follows the core concept that many 
participants favored an orphan works solution. If the user has 
performed a reasonably diligent search but does not locate the 
copyright owner, then the remedies for infringement by that 
user should be limited. Both our written testimony and the 
report go into the specifics of our recommendations, so I will 
not spend too much time on those details now. But I would like 
to focus my remarks today on the reactions that interested 
parties have given to our report.
    By and large, that reaction has been quite positive. A 
diverse array of copyright owners and users, book publishers, 
authors, libraries, archives, museums, motion picture studios, 
record companies, educational institutions, documentary 
filmmakers and others all agree with our conclusion that the 
orphan works issue is real and needs to be addressed, and they 
agree with the basic concept and structure of our proposed 
legislation. Some of these groups have made constructive 
suggestions for changes to the specific provisions and we are 
confident that further discussion among the interested parties 
can resolve any remaining issues.
    Certain groups representing individual copyright owners, 
however, such as photographers, illustrators and graphic 
artists, oppose our proposal. They argue that many of their 
works will be inaccurately labeled orphan works because it is 
often difficult to find the owner of a visual image, usually 
because the name of the creator is not on copies of the work.
    The Copyright Office records are text-based and in most 
cases do not contain much, if any, description of the subject 
matter of the image, in part because we have eased the 
registration requirements for photographers at their request. 
So even if a photographer has registered his works, a user may 
not be able to locate that owner. In other words, these groups 
concede the very problem at the heart of the report. A user 
seeking to locate a photographer of an image that has no 
identifying information on it faces a daunting challenge.
    Our proposal provides safeguards for this problem in a 
number of ways. First, in most cases, including all commercial 
uses, the user of the orphan work must pay the copyright owner 
reasonable compensation if the owner resurfaces. Also, the user 
will not be able to continue making use after the owner asserts 
his copyright, except in defined circumstances, and even in 
that case must pay reasonable compensation for that future use. 
So when critics say that our proposal would strip thousands of 
photographers and other visual artists of their rights, that is 
simply not true.
    Photographers claim that bringing a lawsuit to collect 
reasonable compensation will be prohibitively expensive. We 
agree that legal actions to enforce copyright are expensive, 
just as any access to our court system is costly. However, this 
problem exists for visual images today, regardless of whether 
orphan works legislation is passed or not. Moreover, there are 
non-legal actions that photographers and others can take to 
protect their copyrights. These steps include consistently 
marking copies of their works, development of collective 
licensing mechanisms and deploying technology to allow 
effective searches where the user has only the image and no 
contextual information. Steps like these will also ensure that 
visual images are locatable and their works do not become 
orphan works.
    Regarding the expense of litigation, we noted in the report 
that a new small claims procedure might also help individual 
owners protect their copyright generally, and also allow to 
obtain reasonable compensation if their works fall into the 
orphan category. Last week, we offered to study this question 
in a report to the Subcommittee on potential solutions to that 
problem. However, the key to enhancing copyright protection in 
visual images is not increased litigation, but making it easier 
for owners and users to find each other, which our orphan works 
proposal encourages.
    In conclusion, many users, especially cultural institutions 
like libraries, museums and archives, made clear that any 
orphan works solution must include photographs and other visual 
images, given the persistent orphan works problems that exist 
with these works. In fact, orphan works legislation may be the 
catalyst needed to prompt the non-legal, marketplace reforms 
that will most efficiently address the problems identified by 
these creators. For this reason and others, Congress should not 
delay its consideration and enactment of orphan works 
legislation.
    Thank you for the opportunity to testify today and I look 
forward to answering any questions you might have.
    [The prepared statement of Mr. Sigall appears as a 
submission for the record.]
    Chairman Hatch. Well, thank you, Mr. Sigall.
    Mr. Perlman.

 STATEMENT OF VICTOR S. PERLMAN, MANAGING DIRECTOR AND GENERAL 
    COUNSEL, AMERICAN SOCIETY OF MEDIA PHOTOGRAPHERS, INC., 
                   PHILADELPHIA, PENNSYLVANIA

    Mr. Perlman. Mr. Chairman, Ranking Member Leahy, 
distinguished members of the Subcommittee, thank you for the 
opportunity to present our views. I am speaking today on behalf 
of not just the American Society of Media Photographers, but 
for virtually every major trade association for freelance 
photographers and the Graphic Artists Guild for Commercial 
Illustrators and Artists.
    We absolutely agree that true orphan works are a legitimate 
problem that requires a solution. However, the Copyright 
Office's proposal would have the practical effect of converting 
the majority of published photographs and illustrations to 
orphan works. For photographers and commercial artists, this 
proposal is a disaster of biblical proportions. It is based on 
at least two fundamental and erroneous assumptions.
    One is that registered works will not be orphan works, and 
the other is that most copyright owners and authors can be 
found through text-based research. Both of those assumptions 
are one hundred percent wrong as to visual artworks. Many users 
will have in their hands only an image with nothing else to 
identify it. The Copyright Office's records are not searchable 
by anything but text nor or in the future, and that is not 
because of easing the registration requirements for 
photographers. That is a fact of the way the system is 
structured and will be structured in the future. So if you have 
no name, you have no search results.
    Most photographs and illustrations are published without 
credit, attribution, or other way to identify the creator who, 
for freelance photographers and artists, is usually the 
copyright owner. There is virtually no attribution on the Web. 
In fact, we are told by industry vendors that 90 percent of the 
uses of photographs and illustrations on the Web are 
unauthorized.
    In print media, there are no credits given except for 
editorial uses, and that practice is shrinking. Context does 
not provide much help because the publishers and advertising 
agencies and corporate clients that publish these images have 
no incentive to retrieve and provide data when information is 
requested. Almost all search capabilities are limited to 
textual information. That doesn't help you if all you have is a 
copy of an image. Even the newest image recognition software 
will work only for digital images that are available on the 
Web, and that is a tiny percent of all copyrighted images. The 
result of all of this would be a de facto, retroactive 
confiscation of copyright for most photographs and 
illustrations.
    There are other flaws in the Copyright Office's proposal 
that are set forth in my prepared statement. I urge the 
Subcommittee not to use the Copyright Office's proposed 
legislation as the starting point for addressing this problem. 
There are other, better proposals suggested in my prepared 
statement and also outlined in the Copyright Office's report.
    Freelance photographers and artists are small business 
people of modest means. In the orphan works context, it is a 
case of them against an array of large, powerful organizations 
representing many larger, more powerful and more wealthy 
corporations and institutions. It is a case not of just David 
versus Goliath, but of David versus an army of Goliaths, and 
this time, Mr. Chairman, David really needs your help.
    Thank you.
    [The prepared statement of Mr. Perlman appears as a 
submission for the record.]
    Chairman Hatch. Thank you, Mr. Perlman.
    Ms. Cross.

STATEMENT OF JUNE CROSS, DOCUMENTARY JOURNALIST, AND ASSISTANT 
  PROFESSOR OF JOURNALISM, COLUMBIA UNIVERSITY, NEW YORK, NEW 
                              YORK

    Ms. Cross. Thank you, Senator Hatch and Senator Leahy, for 
giving me the opportunity to speak to you today regarding the 
Copyright Office's report on how best to protect the rights of 
users and owners of so-called orphan works.
    The Copyright Office has done a superb job of examining 
this issue from every angle and asking for public response. 
They have considered the ramifications of the various avenues 
that they have proposed. They and you are to be commended for 
taking so great an interest in helping copyright holders and 
those of us who use them find each other. And I am also a 
copyright holder, I should add, so we are all copyright 
holders.
    We all want to find each other and arrange for fair credit 
and fair compensation. We are especially gratified that you 
have chosen to explore an issue that many might find arcane, 
the issue of how to proceed wisely when faced with work for 
which no registered owner can be found. That problem is not 
arcane to the majority of the thousands of people whom I 
represent here today. We tell stories using collages of 
pictures, words and music. We make films and documentaries.
    As a producer, I have been making documentaries for some 20 
years at PBS' ``Newshour,'' for ``Frontline'' and at CBS News. 
Most recently, I have also been teaching at the Graduate School 
of Journalism at Columbia University. I depend on copyrights in 
my own work to help me earn a living. So does everyone who is 
represented by the coalition of groups that I speak for today 
and who are listed in my prepared statement.
    We are not lavishly endowed studios, but the producers of 
independent films, the directors of scarcely funded after-
school programs, and the community access directors are 
struggling to give citizens a voice. At a time when more and 
more information is available through more means than we can 
count, filmmakers find it harder and harder to put a sense of 
history and context into their work. Allow me to use as a 
worst-case example a film for which I am best known, ``Secret 
Daughter,'' a documentary that I did back in 1996, the story of 
my own biracial family.
    I was born 6 months before the Brown v. Board of Education 
decision in 1954. My parents separated when I was 18 months 
old, and part of my historical, contextual problem when making 
this documentary was how to find footage and stills that would 
adequately and accurately present the way the United States 
looked and felt at that point in time.
    I found in an archive 2 hours of unidentified home movie 
footage taken on 125th Street in Harlem outside the Apollo 
Theater 1 day in June 1954. The archive was happy to well me 
the footage, but they did not know who the original 
photographer was and they would not help me find him.
    I need to stop now and tell you what would have happened 
had I been working for a commercial station instead of at PBS. 
At a commercial station, I would have been under much more 
intense deadline pressure to find the original owner of that 
footage. I would have had to provide evidence that I had 
searched through registered data bases, talked to archivists 
who are familiar with that particular subset of Harlem film in 
the 1950's, find the families of people that I could have 
recognized on the street, and asked anyone I might have known 
who might have had a movie camera in 1954 to try to find the 
person who made this film.
    I would have had to document every step of that way, 
documenting the e-mails, documenting the phone calls, 
documenting the letters. I would have had to show that I 
performed what we call due diligence, which is the record of 
those documented e-mails, phone calls and letters that we 
accumulate over time as we try to find the rightful registered 
owners of those copyrights.
    Even with that paper trail, I would have had to indemnify 
the commercial outlet or distributor that I was working for 
after the work was aired. And then in order to protect myself, 
I have to get something called errors and omissions insurance. 
In today's litigious environment, the insurers are very 
reluctant to insure me if I have a piece of work for which I 
can find, identify and have written permission from a 
registered copyright owner.
    In some outlets, even if I have proved that I have done due 
diligence, even if the errors and omissions insurer can be 
persuaded to take my word for it, the outlet itself will not 
air the piece with that piece of footage in it. So it doesn't 
matter how much due diligence I do; in some cases, this piece 
could not air.
    Were the legislative branch to pass a cap on the amount of 
damages a found copyright owner could receive, this risk would 
be quantified for the insurance companies, because this is what 
the problem is: We are all afraid that a copyright owner will 
emerge and sue us all for millions. Were there a provision for 
me to have a safe harbor by taking that piece of footage out of 
my documentary, that would increase the insurance company's 
confidence that an expensive settlement might be able to be 
avoided. If the distributor could be spared the threat of 
injunctive relief, we would all breathe much easier.
    As it turned out in the case of the footage that I 
described and discovered, that footage on 125th Street in 
Harlem, I was able to find finally the original photographer of 
that footage. It took me the better part of 3 months, using the 
steps that I described earlier. I was able to take that long 
because I was working for PBS, but in the commercial arena no 
one gets that amount of time to do that kind of research.
    That would have been a shame because in the footage that I 
found, I found several shots of my father, a man whom I had 
never known as a child and whom I only met when I was 30 years 
of age. In the shots in 1954, he was holding me when I was 
barely 6 months old.
    I was lucky, as I have not been on other occasions and as 
many others have not been in other situations, to be able to 
put together my own history using footage and archive house-
declared orphans. Shot by shot, others bits and pieces of our 
history are being lost because of the fear by insurers and the 
fear of cable outlets that they will face a lawsuit if so-
called orphan works cannot be identified and the registered 
owners can't be found. It means that bits and pieces of our 
history are being lost. Future generations will never be able 
to know why they didn't see that history. They will just know 
that they never saw it and no one will ever know why.
    I ask the Committee to consider giving every filmmaker more 
of a chance to tell the full story of all of our histories and 
have a chance to bring that history forward by considering 
deeply the value of the work that the Copyright Office has done 
in this regard.
    Thank you.
    [The prepared statement of Ms. Cross appears as a 
submission for the record.]
    Chairman Hatch. Thank you, Ms. Cross.
    Mr. Holland.

STATEMENT OF BRAD HOLLAND, FOUNDING BOARD MEMBER, ILLUSTRATORS' 
       PARTNERSHIP OF AMERICA, MARSHFIELD, MASSACHUSETTS

    Mr. Holland. Chairman Hatch and Ranking Member Leahy, last 
year the Illustrators' Partnership filed a submission with the 
orphan works study which was endorsed by 42 national and 
international arts organizations representing a broad spectrum 
of popular artists; fine artists; medical, scientific and 
architectural illustrators; cartoonists; and educators. On 
behalf of these artists, I appreciate the opportunity to 
address you.
    Our chief objection to the orphan works amendment is that 
it is not an orphan works amendment. An orphan works amendment 
would have applied to old work whose authors have abandoned 
their copyrights. This proposal would legalize the infringement 
of any work of art, past, present and future, regardless of 
age, country or origin, published or unpublished, wherever the 
rights-holder cannot be identified or located.
    It would permit a user to appropriate the private property 
of rights-holders based on the user's own definition of a good-
faith, reasonably diligent search. It would reimpose 
formalities by forcing rights-holders to rely on registries, 
meta data and notice as a condition of protecting their 
copyrights. It would be retroactive, affecting art done over 
the last 30 years when artists were told that their work would 
have the basic protections of copyright law, whether it was 
marked or not.
    It would affect illustrations and photographs 
disproportionately because trade practice requires that images 
routinely be published without identifying information or 
because artists' signatures or marks may be illegible, or 
because information can be removed by others. It would remove 
any meaningful remedies for infringement, which are the only 
means that rights-holders now have of enforcing copyright. It 
would place an impossible burden of diligence on rights-holders 
because they would never have the resources to police 
infringement, which can occur anytime, anywhere in the world. 
It would interfere with the rights of artists to exploit their 
work in commercial markets, which would violate the three-step 
test of TRIPs. And it would harm foreign artists by making vast 
bodies of their work royalty-free in the United States.
    For these reasons and for many others, and with all due 
respect, we do not believe the statutory language proposed by 
the Copyright Office is a solution to the real orphan works 
problem. Instead, it is a blueprint for a radically different 
copyright law.
    The inability to distinguish between abandoned copyrights 
and those whose owners are simply hard to locate is the catch-
22 of the orphan works project. To put it simply, if a picture 
is unmarked, it is impossible to source or date it. Therefore, 
this amendment would orphan millions of valuable copyrights 
that cannot otherwise be distinguished from true orphaned 
works, and that would open the door to cultural theft on an 
unprecedented scale.
    In their submission to the orphan works study, Professors 
Jane Ginsburg and Paul Goldstein warned that orphan works 
legislation should precisely define the category of orphan 
works. The broader the category, they wrote, or the lower the 
bar to making requisite showing of due diligence, the greater 
the risk of inconsistency with our international obligations, 
which in turn reflect longstanding practices that have passed 
the test of time.
    Many potential users of orphan works have asserted that 
these works have little or no commercial value. While this may 
be true of real orphaned work, it is not true of the numberless 
managed copyrights that would be caught in an orphan works net. 
Non-profits organizations which assert that only work of little 
or no commercial value will be affected have not documented 
their assertions, and other users who wish to exploit work 
royalty-free have every incentive to minimize the value of the 
work that they would profit from selling access to.
    We believe the orphan works problem can be and should be 
solved with carefully crafted, specific, limited exemptions. An 
exemption could be tailored to solve family photo restoration 
and reproduction issues without otherwise gutting artists' and 
photographers' copyrights. Usage for genealogy research is 
probably already covered by fair use, but it could rate an 
exemption if necessary.
    Limited exemptions could be designed for documentary 
filmmakers. Libraries and archives already have generous 
exemptions for their missions, and if their missions are 
changing, they should abide by commercial usage of copyright 
instead of forcing authors to subsidize their for-profit 
ventures.
    Therefore, we would respectfully urge this Committee to 
consider the negative effects that this proposed statutory 
language would have on free-market transactions, and we ask you 
to conduct further hearings to resolve this specific problem of 
providing public access to true orphaned works.
    Thank you.
    [The prepared statement of Mr. Holland appears as a 
submission for the record.]
    Chairman Hatch. Thank you.
    Ms. Pallante.

  STATEMENT OF MARIA PALLANTE, ASSOCIATE GENERAL COUNSEL AND 
  DIRECTOR OF LICENSING, THE SOLOMON R. GUGGENHEIM FOUNDATION 
            (GUGGENHEIM MUSEUM), NEW YORK, NEW YORK

    Ms. Pallante. Chairman Hatch, Senator Leahy, thank you for 
the invitation to testify on behalf of American museums. In 
fact, my comments today reflect the views of 18 non-profit 
organizations in the cultural and educational sectors, which in 
turn represent a combined 145,000 museums, libraries, 
universities and archives, more than 135,000 independent 
historians, educators and scholars, all of whom want to make 
productive use of orphan materials in conjunction with their 
missions.
    We applaud the Copyright Office for its tremendous 
contribution to the copyright community in producing the report 
on orphan works. Although the report addresses many complex 
issues, including the need to include unpublished works, the 
need to provide a flexible work standard, the need to 
distinguish between commercial and non-commercial uses, we 
believe the Office got things fundamentally right. On the few 
points where we have concerns, we are extremely optimistic that 
clarifications can be made and that consensus can be reached 
with the other parties.
    The importance of orphan works relief to our communities 
cannot be understated. We have in our possession millions of 
orphans, from personal photographs of ocean voyages, to 
documentation of historical artifacts, to letters of Holocaust 
victims. The Copyright Office approach, with certain 
clarifications and modifications, has the power to directly 
affect the intellectual, historical and cultural life of all 
Americans.
    It will improve the work of individual artists, writers, 
filmmakers, as well as scholars, historians, librarians, 
archivists and curators, who everyday struggle to balance the 
rights of missing or unidentifiable copyright-holders with the 
mission of making these letters, manuscripts, photographs and 
other culturally significant material available to the public.
    I would like to turn now to some recommendations that we 
believe are necessary to make the legislation truly responsive 
not only to the museum community and other users, but to the 
public. I will make just three points.
    First, we believe the statutory language should define 
reasonable compensation. Reasonable compensation is a flexible 
formula that has not received extensive interpretation in case 
law, and to be honest it was not the first choice of museums. 
We wanted a safe harbor, a clear exemption; we wanted 
certainty. Nor was it the choice of many other users in the 
educational sector. Most wanted a clear cap on damages, a cap 
as to potential liability, certainty.
    This said, we are willing to support the concept if it is 
defined in the statute and if clear examples are provided in 
the legislative history, including illustrations where the user 
is a non-profit institution or an independent scholar, and 
reasonable compensation is typically zero compensation. Indeed, 
it is not uncommon for the decision to use a particular work to 
turn on whether it is available for free.
    Second, in its recommended statutory language, the 
Copyright Office has proposed a safe harbor from all monetary 
relief in certain limited instances where the use is made 
without any purpose of direct or indirect commercial advantage. 
This phrase is well-intended by the Office and it has been well 
received by us, but we think it requires clarification.
    For example, organizing and publishing books is a core 
educational function of museums. It is no different than our 
function of organizing and presenting exhibitions. Publication 
of books furthers our central non-profit mission of education. 
In many cases, it is the only practical means by which we make 
our collections accessible to the public. The fact that we sell 
books does not make the sale for purposes of commercial 
advantage. We sell them for the same reason we charge admission 
fees, to defray the cost of operation and production. Our 
publications departments are cost recovery operations.
    In truth, we do not even break even on our books. We do not 
recovered the many fixed costs--the salaries of our curatorial 
and editorial staffs, the cost of the exhibitions, the cost of 
the collections on which the exhibitions are based. We need 
confirmation that the creation and sale of mission-related 
publications are uses that are undertaken without any purpose 
of direct or indirect commercial advantage. On a related point, 
though independent scholars may sometimes earn royalties, this 
does not make scholarship a commercial activity.
    Third, because orphan works will often, perhaps most often 
be incorporated into other works of authorship, we would like 
to see language that more clearly defines the circumstances 
under which a user may avoid an injunction in cases of books, 
films, artworks and websites. A user may well decide to 
incorporate the orphan work based on having determined that 
there was no rights-holder. If the copyright owner later 
emerges and sues for infringement, an injunction would be 
disastrous for the user and the public. In our view, the right 
approach here is to allow the use to continue, but to require 
the user to pay the owner reasonable compensation.
    In closing, we do recognize that orphan works is a 
complicated undertaking, but in our view an orphan works 
amendment has one ultimate goal. It should help to make 
cultural heritage more broadly available to the public. It must 
give users the confidence necessary to take works out of 
obscurity and to expend the resources to make them newly 
available. We believe this legislation is achievable, and on 
behalf of all American museums and our colleagues in the 
cultural and educational sector, we thank you for your 
leadership in making it happen.
    [The prepared statement of Ms. Pallante appears as a 
submission for the record.]
    Chairman Hatch. Well, thank you so much.
    Mr. Rubin, we are pleased to have you here.

   STATEMENT OF THOMAS C. RUBIN, ASSOCIATE GENERAL COUNSEL, 
           MICROSOFT CORPORATION, REDMOND, WASHINGTON

    Mr. Rubin. Chairman Hatch, Senator Leahy, my name is Tom 
Rubin and I am Associate General Counsel for Copyrights, 
Trademarks and Trade Secrets at Microsoft Corporation. Thank 
you for providing Microsoft the opportunity to testify 
regarding possible legislative solutions to the issue of orphan 
works. We commend the Subcommittee for convening this hearing 
and thank Chairman Hatch and Senator Leahy for requesting the 
Copyright Office's detailed study and analysis.
    Microsoft is the leading provider of software services and 
solutions used by hundreds of millions of consumers and 
businesses worldwide. We are a creator of valuable copyrighted 
works such as Windows and Office, as well as a user of 
copyrighted works created by others. For example, our 
interactive encyclopedia Encarta and our online service MSN 
contain both original and third-party content. Although we 
clear rights to any third-party content that appears in our 
products, we occasionally have run into difficulties locating 
the owners of works we wish to include.
    Microsoft's interests in the orphan works issue thus 
coincide with those of both authors and users. We therefore 
support a balanced solution to the orphan works problem, one 
that respects the exclusive rights of creators while advancing 
the public's interest in obtaining broad access to works.
    While there are several possible approaches to the policy 
issues raised by orphan works, the approach set out in the 
Copyright Office report is a promising start. As an initial 
matter, we believe that addressing the orphan works problem 
through a limitation on remedies offers a reasonable approach, 
one reflected elsewhere in the Copyright Act for promoting the 
dissemination of works while safeguarding the rights of 
copyright owners. We believe this approach is far preferable to 
one such as a registration system or similar regime that would 
impose formalities or other burdens on authors and the 
Copyright Office alike.
    It is also preferable to a compulsory or other government-
administered licensing or royalty scheme which could become 
mired in bureaucratic overhead while denying authors fair 
compensation for their works. A compulsory license is 
particularly inappropriate for the orphan works problem because 
if the work is a true orphan, there would be no one to receive 
the compulsory license fee. And if, by contrast, the work 
proves not to be an orphan, compensation to the copyright owner 
should match prevailing market-based royalty rates for the 
work.
    We also believe that a use-based registration system in 
which users would enjoy limited liability simply by filing a 
notice with the Copyright Office before using a work would be 
unfair to authors, inefficient and difficult to implement.
    With respect to the specifics of the Copyright Office's 
proposed legislation, we support the use of a good-faith 
reasonableness standard for evaluating whether a user has 
conducted a sufficiently diligent search to locate a work's 
owner. Given authors' exclusive rights to decide whether and 
how to make their works available to the public, it is vital 
that the proposed limitations on remedies be available only to 
users who have undertaken objectively reasonable and truly 
good-faith efforts to locate the work's owner. Merely 
perfunctory searches should never qualify for the limitation on 
remedies.
    The nature of what constitutes a sufficiently diligent 
search is likely to vary considerably, depending upon a variety 
of factors. Given the fact-specific nature of the inquiry, we 
appreciate the difficulty of establishing specific statutory 
criteria for what constitutes a good-faith, reasonably diligent 
search. At the same time, we consider it essential that this 
standard not be interpreted in a manner that would weaken the 
ability of copyright owners to protect their works against 
misappropriation. We therefore support the ongoing efforts of 
various stakeholders to explore what might constitute a 
reasonably diligent search in various contexts.
    In those cases where a copyright owner is entitled only to 
reasonable compensation for the use of her work, we support the 
notion that this amount should represent the amount the user 
would have paid to the owner had they engaged in negotiations 
before the infringing use commenced. Given its importance, 
clarifying this standard in the legislative text, in our view, 
would be useful.
    In closing, I would like to emphasize the beneficial role 
that technology, and in particular software, can play in 
helping address the orphan works problem. As the Copyright 
Office report observes, any system to deal with orphan works 
should seek primarily to make it more likely that a user can 
find the relevant owner in the first instance. Technologies 
already exist that make it easy for authors to embed rights 
management information into their digital works and for users 
to locate and read this information.
    As search technologies continue to improve--an area in 
which Microsoft is devoting substantial resources--the ability 
of users to locate copyright owners should likewise improve, 
thereby decreasing the number of cases in which a work is 
incorrectly considered an orphan.
    Thank you once again for inviting Microsoft to testify at 
today's hearing. We commend the Subcommittee for giving its 
attention to the orphan works issue and we look forward to 
working with the Subcommittee as it shapes and advances 
legislation in this area.
    [The prepared statement of Mr. Rubin appears as a 
submission for the record.]
    Chairman Hatch. Thank you, Mr. Rubin.
    Mr. Prelinger.

STATEMENT OF RICK PRELINGER, BOARD PRESIDENT, INTERNET ARCHIVE, 
                   SAN FRANCISCO, CALIFORNIA

    Mr. Prelinger. Thank you, Mr. Chairman, for the privilege 
of addressing the Subcommittee today. I would like to begin by 
thanking you and the Ranking Member for your leadership in 
addressing the orphan works situation. The process that you 
have started has awakened broad public interest and we are very 
excited to see this problem being so actively and thoughtfully 
addressed.
    I come to you today wearing two hats. First, as Board 
President of the Internet Archive, I would like to say a few 
words about our activities, especially our project to digitize 
the contents of America's great libraries and build an open 
digital library available to all. My second, and considerably 
smaller-size hat is as founder of Prelinger Archives, a small 
commercial film archive that specializes in historical footage 
of American life, culture and industry. I would like to talk 
about why clarifying the orphan works situation is especially 
critical for films.
    So, first, the Internet Archive. We are a non-profit 
library that has collected billions of works and served 
millions of users since 1996. We collect books, music, moving 
images, Web pages and software programs. We work with the 
Library of Congress, the National Archives, the National 
Archives of the UK and many other institutions to find workable 
solutions to libraries' and archives' missions in the digital 
world.
    Last October, we announced the formation of the Open 
Content Alliance, in partnership with five major technology 
companies and over 50 research and public libraries holding 
over 150 million books. The alliance seeks to digitize the 
holdings of key libraries and build a great joint collection 
online. Our members have all agreed to make their holdings 
openly available to all users, subject, of course, to the 
limitations of copyright law.
    We believe that there are many hundreds of thousands, 
perhaps millions of orphan works which, if digitized and made 
available to all, would vastly add to our public storehouse of 
knowledge. We hope that we and our partners will be able to 
digitize and provide access to these books for non-commercial 
public purposes without fear of liability. Toward this end, we 
strongly support the Copyright Office's suggestion regarding 
limitation on remedies for non-commercial use and we advocate a 
simple request and removal procedure for libraries and archives 
that would respect the rights of copyright owners who come 
forward.
    Let me switch hats and say a quick word about the Prelinger 
Archives. Most of our collection actually came here to the 
Library of Congress in 2002, but we are still collecting 
historical film, especially industrial advertising films and 
home movies. These are vivid documents of everyday life showing 
our country and its people as they actually were, quite unlike 
Hollywood films or TV shows.
    Our footage is in very high demand and we have made a 
business out of licensing stock footage. Most of our films are, 
in fact, orphan works because most small film producers are no 
longer in business. Contemporary audiences are fascinated by 
historical films. I recall the thrill of an audience in 
Britton, South Dakota, when I showed them Depression-era home 
movies from their own town. This coming August, archivists and 
members of the public will gather in at least 24 States to 
celebrate Home Movie Day, watch family films and select 
historically valuable items for preservation. We ourselves have 
put 2,000 of our own films online for free, and some 5 million 
have been downloaded.
    Film is a peculiar creature in that it is quite fragile. It 
often decomposes more quickly than copyrights do. We therefore 
face a critical dilemma when it comes to preserving films. Non-
profit archives like Northeast Historic Film and organizations 
like the National Film Preservation Foundation--by the way, I 
would like to thank you for your work in reauthorizing the 
National Film Preservation Board, the foundation's parent--need 
assurance that they can intervene to rescue deteriorating films 
without fear of liability. Small businesses like ours whose 
budgets are at non-profit levels also need to know that they 
can recover the costs of preservation through commercial 
licensing.
    I am a member of the baby-boom generation. Much of my 
generation's history has passed into the public domain, but 
because of the peculiarities of copyright law, many of my 
younger friends lack the freedom to freely quote or reproduce 
key works from their own era. Easing access to orphan works 
would go a long way toward addressing this generational 
inequity.
    I thank the Subcommittee for its attention and I look 
forward to answering any questions.
    [The prepared statement of Mr. Prelinger appears as a 
submission for the record.]
    Chairman Hatch. Well, thank you. This has been very 
interesting to me. I have to say a lot of people think it is a 
seemingly small issue, but it a whole raft of issues that are 
very complex and very interesting.
    Conceptually, there appears to be at least three different 
proposals to address the orphan works problem, and I would just 
like to get the panel's view--and we will start with you, Mr. 
Sigall, from left to right--on the relative merits of each of 
these three approaches.
    First, there is the Copyright Office proposal which simply 
limits the remedies available if an alleged infringer can 
demonstrate that he or she performed a good-faith, reasonably 
diligent search for the copyright owner prior to using the 
copyrighted work. Now, this is perhaps the simplest solution 
and it minimizes the ongoing involvement of the Copyright 
Office and other governmental entities in resolving disputes 
over orphan works.
    Second, some have suggested the creation of a new statutory 
license that would impose the duty on a potential licensee to 
perform a more specific type of search and pay a statutory 
royalty before using any orphan work. If an owner of a work 
that was used subsequently emerged, he or she could then make a 
claim against the royalty pool and receive payment for the use 
of the work. Obviously, this proposal would require more 
involvement by the Copyright Office in terms of administering 
the license and distributing royalty payments.
    Third, some have proposed instituting something similar to 
the renewal requirement that existed prior to our accession to 
the Berne Convention. Under this proposal, copyright holders 
would be required to comply with a formal review process that 
would be similar to registration in order to enjoy continued 
copyright protection near the end of the current copyright 
term. Now, as I understand it, to remain in compliance with our 
treaty obligations, we would have to limit such renewal 
formality just to U.S. copyright owners.
    I think both of us would be interested in hearing from each 
witness about the relative merits and potential problems with 
each of these options, and we will start with you, Mr. Sigall.
    Mr. Sigall. Well, I will address the second and third 
options. We are fond of the Copyright Office proposal, as you 
might expect.
    With respect to statutory license or a system where a user 
would have to both do a diligence search and pay into a fund 
that could be distributed to resurfacing copyright owners, we 
addressed that a little bit in our report. The main, I think, 
objection to that proposal where it is flawed in this context 
is that if most of us agree that most reasonably diligent 
searches will find owners, and those that don't truly are 
orphan work situations, you are setting up a system where 
people are paying into a fund where there is no owner to come 
back and collect the funds.
    So you would have to set up a bureaucracy, as you 
mentioned, in the Copyright Office to collect the money. But in 
almost every case, maybe upwards of 95 to 99 percent of the 
time, that money doesn't get distributed to a copyright owner. 
It just sits there. It either goes back to the user in an 
inefficient way or gets distributed somewhere else.
    This is not like the situation in other circumstances where 
a statutory license has been implemented where you know where 
copyright owners are and where the moneys can be distributed 
more efficiently. So we don't think that is the most efficient 
or effective way to address the problem with respect to orphan 
works because we think in most cases there will be no owner who 
resurfaces. So let's not set up a system to address a problem 
that won't actually arise in practice for the most part.
    With respect to questions of a renewal requirement or an 
additional formality that might be imposed on copyright owners 
to maintain their copyright, in essence, as you mentioned, that 
raises the real potential of violation with our international 
obligations and the general prohibition against such 
formalities.
    As a practical matter, we have experience with that kind of 
system under our old 1909 copyright law and the experience from 
that time is that those burdens, the burden of renewal and the 
burden of filing maintenance of your copyright, fall most 
heavily on individual copyright owners, like photographers and 
illustrators that are here today. And they end up being more a 
trap for the unwary than they do actually help solve the 
problem of getting copyright owners and users together.
    The other thing I think that is the flaw in those types of 
systems is they offer what I would call the illusion of 
certainty. There is a feeling that if there is a piece of paper 
that people can go find in the Copyright Office or somewhere 
that you will know who the owner is and resolve a lot of the 
questions. You may in several cases, but what you end up having 
is what we had under the 1909 Act. You end up having litigation 
over arcane definitions about when something was published or 
what exactly the piece of paper in the Copyright Office covers, 
instead of having more appropriate questions of what the person 
did to find the copyright owner and how much the copyright 
owner made themselves available.
    So we think both in legal terms and in practical terms, a 
registration and renewal requirement really doesn't help solve 
the problem that we are trying to solve in the orphan works 
situation.
    Chairman Hatch. Mr. Perlman, my time is up, so if you could 
answer in short verse, I would appreciate it.
    Mr. Perlman. Like Jule, I won't comment on the orphan works 
proposal from the Copyright Office, but for the reason that I 
dislike it as much as he likes it.
    The statutory license or something similar is already 
working in the music world. I think that that seems to be at 
least a good starting point for an approach. Jule doesn't like 
it because it is inefficient. I think inefficiency is better 
than confiscation.
    The renewal requirement, I believe, would not really help 
users of images because whether it is registered or renewed, 
the user simply can't find the information the way the 
Copyright Office's records are currently searchable.
    Chairman Hatch. Ms. Cross.
    Ms. Cross. I think we would tend to side with Mr. Sigall on 
the Copyright Office's proposal. PBS actually does use a 
version of a statutory royalty. We call it an escrow account. 
It might be something that is worth looking at if you choose to 
explore that.
    I think where we stand generally is that we are in favor of 
some kind of cap on whatever amount would be charged should an 
orphan work registered owner emerge and stretching the take-
down provisions to include we who make films.
    Chairman Hatch. Mr. Holland.
    Mr. Holland. Well, briefly, the problem, I think, with a 
renewal requirement is it would create massive amounts of 
paperwork that would just--if you are photographer, you take 
hundreds of thousands of images that you have to start tracking 
and renewing. You are going to be swamped with paperwork. 
Artists and photographers would simply have to put on extra 
staff just to handle the renewals.
    I would agree with Vic that inefficiency is better than 
confiscation, and I would think that the problem with 
formalities is that the Copyright Office proposal already 
imposes formalities. It just doesn't say so, but it does so by 
penalizing artists who don't impose formalities on themselves.
    Chairman Hatch. Ms. Pallante.
    Ms. Pallante. We support the Copyright Office proposal 
because it is the only one, in our view, that addresses the 
need to give us some confidence to get things out of obscurity. 
It gives us a framework where we can look at millions of 
photographs and unpublished letters, and figure out how to 
invest in those and put them out in new formats available to 
the public in a way that is meaningful without the fear that at 
any point in the future somebody will come along and slam us 
with a lawsuit for an amount of money that we just can't 
handle.
    So the practical respect of the other two proposals is that 
we just won't use that material and that is what is happening 
now. The reason we like the Copyright Office proposal is 
because it is fresh and innovative and would get us thinking 
about how we can make that stuff available, especially given 
the Internet and digital technology.
    Chairman Hatch. Well, thank you.
    Mr. Rubin.
    Mr. Rubin. We believe that the Copyright Office approach is 
an elegant approach to the competing concerns that are raised 
by the orphan works issue. The problem with the statutory 
license is that the best remedy is one that would approximate 
what the parties would have agreed to, given the work that is 
at issue. Coming up with a statutory fee will likely be either 
too little or too much, given whatever the work is. It will 
also create enormous overhead. And as Mr. Sigall said, in the 
vast majority of situations, particularly as time goes on and 
technology improves, there will be fewer true orphan works out 
there. So a whole structure will be set up with little benefit.
    As for new formalities, those, too, would lead to 
tremendous overhead. It would create an inappropriate disparity 
between U.S. and foreign works, and it doesn't particularly or 
directly address the problem at issue.
    Chairman Hatch. Thank you.
    Mr. Prelinger.
    Mr. Prelinger. We believe that the Copyright Office 
proposal is thoughtful and takes these competing interests into 
account. Archives have two primary missions--preservation and 
access--and in the digital world both of these functions are 
handled on a scale that we haven't seen before. The Internet 
Archive, for example, has 55 billion Web pages, and we think 
that the framework that is advanced by the Copyright Office 
comprehends this new direction and will allow digital archives 
to function fruitfully.
    Chairman Hatch. Thank you.
    Senator Leahy.
    Senator Leahy. Thank you, Mr. Chairman. I am finding it 
interesting, obviously. The reason for this panel is there is 
not uniformity of opinion.
    Mr. Sigall, let me first go to you. As I said, I appreciate 
the report and all the work your office did and I think that 
work was very, very helpful. But you have said photographers 
have objected to the proposed legislation because of the high 
cost of litigation, but then you say that already exists today. 
Of course, it does, but what also already exists is the 
possibility that the infringer, especially if he has a unique 
photograph, might have to pay a lot of money to the 
photographer. The orphan bill takes that away, so then the 
infringer becomes more emboldened and a lawyer is certainly 
much less apt to take it on a contingency basis.
    How about changing the bill to permit attorney's fees and 
costs and statutory damages if you have a case where an 
infringer couldn't show that he had reasonably sought to find 
the owner?
    Mr. Sigall. Well, that solution is a potential avenue to 
explore to address the situations where the user is truly 
intransigent and truly does not want to negotiate with the 
photographer or other copyright owner who resurfaces over what 
the reasonable compensation might be.
    Senator Leahy. It would also cover the case where they 
didn't do a reasonably diligent search because they didn't want 
to find the photographer, for example.
    Mr. Sigall. The difficulty that that proposal would raise 
is that what we heard from many in the user community is it is 
the prospect of statutory damages and attorneys' fees which is 
the major obstacle to them being able to use the work. So to 
the extent any proposed change to our proposal reintroduces 
that uncertainty, they might be concerned that no matter what 
they try to do, somebody down the road will say it wasn't 
enough or it wasn't an effort to find the owner. And then they 
are faced back with the same uncertainty that they have under 
the current system, which is always the possibility, even 
though it may be remote, of a statutory damages or attorneys' 
fees award against them.
    And keep in mind that under the current system those 
remedies are only available if the photographer has, in fact, 
registered their work in advance of the infringement, or any 
copyright owner has registered their work in advance of the 
infringement.
    So to the extent there is any consideration of 
reintroducing some of those remedies back into an orphan works 
system, it would have to apply only in a situation where the 
photographer or illustrator has done that in advance of the 
infringement. It shouldn't give them those remedies back.
    Senator Leahy. Well, what about a situation like this: 
Somebody takes a photograph today and the person sees it and 
says you can't use that? We had this happen recently on a book 
that is now currently on the bestseller list. I got one of the 
first copies that came out before they realized that. Then in 
the hundreds of thousands printed after that first run, they 
had to change the cover. That is easy. They said you can't use 
it. It stopped, and I assume they negotiate for what has been 
used.
    But what if you have a case where, say, a singer sings a 
song and then it is used in a way they never expected, never 
could have anticipated, in a pornographic movie, for example? 
Now, they feel they really are damaged because if they get 
associated with that, it may well change where they can get 
concert fees, and so on. Or it is used in a way that would 
obviously cause great embarrassment to them because of their 
religion, their background, their family, or whatever.
    Reasonable compensation, as we might define it, is kind of 
cold comfort, isn't it? Don't you have to have some way to 
handle something like that?
    Mr. Sigall. Well, under our proposal, the limitations on 
remedies don't come into play if the owner can be found through 
a reasonably diligent search. So if a songwriter, for example, 
has their song, if they are registered with ASCAP or BMI or the 
Harry Fox Agency or any of the various clearinghouses and other 
information sources, I think it would be the very, very rare 
case that that would be considered an orphan work. So they 
would be entitled to the full remedies that the Copyright Act 
affords them right now. Even under our proposal, the 
availability of injunctive relief is possible if the work is 
simply republished.
    Senator Leahy. In an Internet age, injunctive relief isn't 
a great deal of comfort, is it?
    Mr. Sigall. Well, it is not, but again that is----
    Senator Leahy. I have taken several photographs here which 
I could have--I am not going to; I have my own collection, but 
they could be on dozens of websites before you are home for 
dinner tonight.
    Mr. Sigall. That is true, and that is a problem that is 
generally applicable to copyright.
    Senator Leahy. You look very good in the photographs. You 
don't have to worry.
    Mr. Sigall. That is true, and I think one of our 
suggestions that we made in the report and we have repeated is 
trying to develop ways for more efficient enforcement 
mechanisms that are less expensive and able to address 
infringement in a quicker way than with respect to Federal 
court litigation.
    Senator Leahy. Well, Mr. Perlman suggested some kind of an 
alternative dispute resolution; I guess a small claims court or 
something like that. Am I stating your position correctly, Mr. 
Perlman, to handle orphan works issues?
    Mr. Perlman. I had several alternative proposals. 
Certainly, some sort of expedited handling of disputes relating 
to orphan works and copyrights generally would be a vast 
improvement over what we currently have. I think that having 
some sort of a licensing organization that would escrow funds 
would be preferable to that. Obviously, a lot of user 
communities don't like that because that means that they would 
have to pay for things that they want to use for free.
    Senator Leahy. I just realized the clock, Mr. Chairman. I 
am over my time.
    Chairman Hatch. You are fine. Go ahead.
    Senator Leahy. You have two kinds of photographs here, as I 
see it: what I just took here, these digital photographs, which 
I have found as a result of which I will probably be able to 
contribute to my grandchildren's college funds because I won't 
have to pay so much for film that I would be spending 
otherwise. So those are easy to send over the Internet, but 
then you have got those of historical interest that you might 
find in an old family Bible or in a closet, attic or something 
like that. It would seem that those would be more apt to be 
orphaned, whereas with the more recent digital ones you could 
find the owner.
    Am I wrong, or should there be any difference in the 
treatment of them?
    Mr. Perlman. I think that at least as of the state-of-the-
art today, you are probably not correct because some 90 percent 
of the images that appear on the Internet right now are 
unauthorized. They obviously have no way of tracking the 
author.
    One of the inherent problems, whether we are talking about 
print media or electronic media, is that at least for 
commercial photographs the publisher--and I use that term in 
the copyright sense--has total control over what information is 
available. Most of the time, they choose not to give any 
attribution to the copyright holder and creator.
    Worse, the user community as a whole has a vested interest 
in not disclosing that information because it then creates a 
pool of orphan works from which the other users can then take 
works without any compensation with, at most, the risk of 
having to pay a reasonable licensing fee.
    Senator Leahy. In a digital age, what about the creative 
community setting up their own digital data banks? Wouldn't 
that make it a lot easier to match up an appropriate use?
    Mr. Perlman. Absolutely, sir.
    Senator Leahy. That would make it more difficult for 
somebody to say I did a reasonable search and I couldn't find 
the person.
    Mr. Perlman. Absolutely. We are currently working with 
technology providers to use image recognition software to 
create data bases that would absolutely be usable. But as you 
pointed out at the beginning of your questions, that would work 
for the current pool and future pool of digital images. It does 
not begin to address the 50 or 70 or more years of photographs 
that are currently under copyright that are in print media. And 
the cost and difficulty of taking these millions, perhaps 
billions of images and turning them into digital files is 
astonishing.
    Senator Leahy. Well, I am thinking, and it is sort of based 
on something Ms. Cross--and incidentally we are honored to have 
you here, with the work you do.
    Ms. Cross. Thank you.
    Senator Leahy. Putting these kinds of films together must 
be fascinating and it must be frustrating at the same time. 
What you said about seeing photographs related to your own life 
must have been almost overwhelming. I had somewhat of a similar 
feeling after my parents died, going through some of their old 
photographs and realizing who some of the people were.
    If we had a real--and maybe I should ask this of all of 
you--a real orphan works bill, do you envision companies coming 
up or groups coming up to do data banks and that if a filmmaker 
like you went to that data bank and said here is a picture I 
want to use that that would be considered a reasonable search?
    Ms. Cross. No.
    Senator Leahy. No?
    Ms. Cross. No.
    Senator Leahy. What would you want?
    Ms. Cross. I have a fairly rigorous standard that I 
instruct all of my researchers to follow and it does not 
include one-stop shopping. I mean, even if there was a visual 
registry, I wouldn't trust a visual registry because I don't 
trust anything that is on the Internet. So I mean I would want 
to try to find whoever that picture was supposedly taken by, 
ask them did they, in fact, take it and send them a photocopy 
of it.
    If I can't find that person through a data base, I am going 
to try to find out who were the other photographers that were 
present at the particular event. If I can't figure that out, I 
will begin to start calling people that I know were present at 
the event and who did they know that was there. It is really a 
sleuthing--it is a detective expedition that we go on.
    The impact of an orphan works bill wouldn't be that I would 
do less of that, because I am still going to want to make sure 
that I am not opening myself up to litigation. I am going to 
want to still document. It would just make it easier for me to 
use things that otherwise cable companies and even PBS now in 
some cases are saying, no, we don't want to take the risk. We 
don't know who this is. We don't care that you can document 
making phone calls and sending e-mails two or three times a 
week for the better part of 6 weeks or two months. We still 
don't want to take the risk.
    As a result of that, there are things--and I am not talking 
about the photographers that work for Magnum or Getty Images. 
Those guys, they are documented, but the history of this 
country that is documented by mom and pop and home movies is 
not by and large documented within the archives of Magnum and 
Getty, and that is when we need help.
    Senator Leahy. I just put together a photo show in Vermont, 
and all the photographs were mine except for two and I spent a 
lot of time and my staff spent a lot of time making sure that 
we had the permission of the two people who took those, even 
though there was no commercial involvement at all. It was at my 
alma mater and I wanted to use the two pictures because they 
were thematic to it, but I wasn't going anywhere with them 
unless we had permission.
    Mr. Prelinger, you talked about digitizing orphan works for 
the public good and I am thinking about what Professor Cross 
just said. Would you feel comfortable using an orphan work 
under the proposed legislation?
    Mr. Prelinger. In many cases, if we are talking about 
digitizing books or published moving images, it is a little bit 
easier because there are a number of tools that we can use 
either to locate an author or copyright holder or rule out that 
such an entity really exists.
    I think where it gets more complicated and what a lot of 
this discussion has been are unpublished works or works that 
are not attributed upon publication, such as an anonymous 
illustration. I would like to suggest that the attribution 
requirement that the Copyright Office is suggesting in its 
proposal goes a long way toward making sure that that work, if 
it is reused again as an orphan work, is identified and so 
there is the potential for the owner to come forward.
    Senator Leahy. I think we have got a lot of work ahead of 
us, Mr. Chairman, on this issue, but I think it is an extremely 
important one. On the one hand, Professor Cross has said you 
want to work very hard, but then you want a film where these 
things may be integral to the film, just as a book or something 
else.
    I think of writers of a history book, how extraordinarily 
important that is. I mean, the photographs or a written letter 
or a facsimile of a contemporaneous account--how much that adds 
to the interest or verisimilitude of the book itself.
    So on the one hand, I want to make sure that a writer, a 
documentary filmmaker or somebody else is not so gunshy they 
can't use these things which will make the final product more 
realistic. On the other hand, I don't want a situation where 
somebody can say, hey, I have got a great picture. Does anybody 
know where this comes from? You don't? OK, I can use it. And 
somebody who has worked extremely hard to get that picture or 
discover that letter isn't recompensed.
    Mr. Chairman, I think we have a lot of work ahead of us on 
this.
    Chairman Hatch. Well, I think we do.
    Senator Leahy. Thank you.
    Chairman Hatch. It is certainly an interesting area.
    Let me just ask one last question of Mr. Rubin and Mr. 
Prelinger. I would be interested in hearing your thoughts about 
the relevance of a solution to the orphan works problem now 
that it has been raised to the world of the Internet.
    Let me ask you this: What type of impact would you foresee 
this having on the availability and diversity of online 
content? Let me go a little further than that. What types of 
things are not possible now that might emerge if orphan works 
were made more available?
    I would also be happy to hear from other witnesses about 
the impact of Internet distribution and its relevance to this 
debate after first hearing from you, Mr. Rubin, and then Mr. 
Prelinger.
    Mr. Rubin. I think that, if enacted, there is likely to be 
greater uses on the Internet of a wider variety of historical 
images and works. One of the, of course, benefits, as well, of 
Internet use--while it has a downside in terms of the ability 
for infringing works to be propagated on the Internet, one of 
the benefits is to the extent an orphan work or what was 
mistakenly identified as an orphan work appears on the Internet 
and it turns out that it is not an orphan work, the damages can 
easily be mitigated and the work can be taken down. That is not 
to say there shouldn't be a remedy in that situation, but I 
believe that there would be greater accessibility to a wider 
diversity of works if the bill is enacted.
    Senator Hatch. Mr. Prelinger.
    Mr. Prelinger. We think that if this legislation were 
enacted in substantially similar form to what we are seeing now 
that it would have a tremendous impact on the amount of 
cultural material that was widely available, and also on the 
reuse. Public authorship, whether it is scrapbooking or public 
television, really all along that spectrum we think would be 
tremendously helped.
    It does raise some questions. It would mean that libraries 
and archives that are collecting digitally would probably need 
to be able to make digital copies of orphan works for 
preservation purposes. That is a complex issue. Also, many of 
the documents that we collect at the Internet Archive are 
ephemeral and transient. They are Web pages that come and go 
very, very quickly.
    We have remedies, you know, the notice and take-down right 
now that is supplied by DMCA which is a very nice paradigm that 
we hope will be followed. In addition, there are technical 
means by which somebody can say don't collect my Web page. They 
can put a robot exclusion into effect, and that has been 
working very, very well. For example, we don't collect the New 
York Times because the New York Times has an automatic 
exclusion there. So we can't save those pages. So to some 
extent this has been anticipated. We don't think the problems 
are insurmountable and we think the opportunities are great.
    Chairman Hatch. Thank you.
    Does anybody else care to comment?
    Ms. Pallante. I would like to comment on that. I think for 
the museum and archive world, the impact would be tremendous. I 
couldn't agree more. I think if the Copyright Office proposal 
were to pass with just some minor modifications along the lines 
that we have suggested in our written statement, you will see 
in a very short time incredibly interesting and historically 
important and culturally significant materials put out in new 
formats--websites, books, scholarly journals. It would be 
tremendous.
    Mr. Holland. Could I comment? If something goes on the 
Internet, Senator Leahy said a few minutes ago that injunctive 
relief is cold comfort if something is put on the Internet. 
Once something is put on the Internet, it has been laundered 
throughout the world. I know of a painting of mine that is 
being infringed in Iran at this moment and there is not very 
much I can do about that.
    If the Copyright Office proposal goes through--it is not 
this isn't happening already. Right now, it is called piracy. 
If the Copyright Office proposal is accepted, it is no longer 
piracy. It is a form of using orphan works. My picture in Iran 
right now is an orphan picture. Somebody is using it on their 
website. It is an orphan work because it is not attributed to 
me, and it creates a family tree of infringements because 
anybody who sees that unattributed is now able to pick that up 
and use it again.
    Chairman Hatch. Sure.
    Ms. Cross. I think we should make a distinction between 
piracy and orphan works. I mean, that is not an orphan work. 
Somebody stole your work.
    Mr. Holland. But once that person has taken it, it is 
unattributed. On his site, it is an orphan because there is no 
attribution.
    Ms. Cross. But we know how to find the owner.
    Mr. Holland. No, I don't.
    Ms. Cross. You are findable, you are findable.
    Mr. Holland. He is in Iran.
    Ms. Cross. No. I am saying the person--I don't mean to 
start a direct conversation.
    Mr. Holland. I apologize.
    Ms. Cross. There is a distinction between stealing 
somebody's work and being able to find, if someone tried to 
find the person, and an actual orphan work. I think this would 
give great confidence to a lot of insurers and to a lot of 
commercial outlets now which refuse to allow a lot of materials 
to be used because we just don't know what they are.
    Mr. Perlman. To give an example of the potential inequity 
of this proposal, there are already companies and individuals 
who have registered domain names using variations of the term 
orphan works with the plan of creating data bases of images 
that they could then turn around, and since they don't own the 
copyright, license them, but instead allow people for a fee to 
come in and access the data base and use the images, thereby 
converting orphan works into a commercial windfall at the 
expense of the illustrators and photographers.
    Chairman Hatch. Well, under this proposal, though, you have 
a remedy anyway.
    Go ahead, Mr. Sigall.
    Mr. Sigall. Let me also say none of this kicks in until the 
person does a reasonably diligent effort to find the owner and 
if the person in Iran or anywhere doesn't make any effort to 
find Mr. Holland, this doesn't apply. And to the extent that 
there are companies that might be planning to make a business 
out of this, to the extent they do a reasonably diligent search 
they still have to pay reasonable compensation to the owners. 
And at that point, the owners are surfacing. They can make 
themselves known to other users so that those users can't claim 
benefit of the orphan works proposal as well.
    Chairman Hatch. Let me make a suggestion to you, Mr. 
Sigall, and other people there at the Copyright Office. Why 
don't you prepare what you consider to be a list of things that 
must be undertaken before it could constitute due diligence so 
people would know what they really should be doing?
    Now, that is hard to do, and it is hard to do right, I 
understand, but at least it would be wonderful if we had some 
sort of a list of suggestions as to what would constitute due 
diligence in the eyes of the Copyright Office, and therefore 
maybe in the eyes of everybody. But if you would do that, I 
think that would be helpful.
    Mr. Sigall. We would be happy to undertake that, but the 
problem is we would like to hear from people who do searches, 
like Ms. Cross or other people who use these works.
    Chairman Hatch. Well, sure, you would want to consult with 
Ms. Cross and others.
    Mr. Sigall. Those folks have the expertise. Depending on 
the sector in which they are working, they know where the 
resources are and how to do things like that.
    Chairman Hatch. It seems to me you could be helpful to us 
here if we could come up with what would be at least minimal 
requisites for due diligence in looking for these things. Now, 
I know that there are an awful lot of products here, an awful 
lot of different types of venues here, but let's see if we can 
come up with something that might be of some assistance to us.
    It is apparent, Professor Cross, that you do a lot of 
things, from your testimony, that you may not have to do.
    Ms. Cross. Not if I want insurance.
    Chairman Hatch. In the interests of trying to be fair to 
copyright owners, you have done more than just say, well, I 
looked through the Internet and I couldn't find anything. And 
we might be interested in what you think constitutes a due 
diligence search. I think I have some ideas of what I think 
would constitute that, and I think there are extremes one way 
or the other that we would like to avoid, but if we go to 
legislation like this, have some sort of a basis whereby people 
feel confident that there has been at least some effort made to 
discover the copyright owners.
    We would appreciate any other help you can give us. We will 
keep this record open. We don't have any desire to stick 
anybody with legislation that might not be as effective as it 
should be. We would like to do the best job we can here, and I 
in particular am extremely interested in history and in the 
documentation that we have from history.
    Through museums like your own, we benefit tremendously from 
these types of materials if they can be disseminated widely, 
and we lose if we can't find some way of disseminating it. So 
we would be very interested. We can see that there is a lot of 
work to be done here and, like I say, we don't want to hurt 
anybody, but we would like to get this where it works to the 
best of our ability.
    We have listened to you, Mr. Holland, and you, Mr. Perlman, 
in particular, about your real concerns. But I have listened to 
all of you and we would appreciate any further help you can 
give us. We will keep the record open so you can write to us.
    This has been a very helpful hearing and I want to thank 
each of you for being here and participating. Although we may 
not in the end be able to accommodate all of the views and 
suggestions that have been made here today, please be assured 
that Senator Leahy and I will carefully consider them before 
moving forward with any orphan works bill, and the rest of the 
Committee as well. We welcome your ongoing participation as we 
move through the legislative process.
    Now, we are going to hold this hearing record open for an 
additional 7 days, which is, we think, a pretty good time. If 
you need more time, please let us know because we will continue 
to work on this and we would love to have your expert advice.
    With that, we want to thank you all for being here and the 
hearing stands adjourned. Thanks so much.
    [Whereupon, at 3:33 p.m., the Subcommittee was adjourned.]
    [Submissions for the record follow.]
    
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